A Killing at the Creek: An Ozarks Mystery: Chapter 40


THE JURY WAS selected, at last. The afternoon sun shone through the windows with a vengeance as Judge Callaway instructed the jurors to raise their hands and administered the oath where they swore to do their jobs as jurors in the criminal case.

“Be seated,” he said. He told the jurors they would hear preliminary instructions, and pulled out the page to read aloud.

An elderly woman raised her hand. Without calling on her, the judge asked, “Anyone need a restroom break before we begin?”

The woman broke into a grateful smile.

As the courtroom cleared out, Elsie relaxed a little. Pulling out her Opening Statement, scrawled in hasty moments before she left her apartment that morning, she gave it a quick run-­through in her head. After a second quick review, she felt comfortable and was ready to go. Elsie hated flying by the seat of her pants. She returned the handwritten pages to her folder and set it on the corner of the counsel table.

Stacie appeared at her shoulder. In a whisper, she said, “Chuck Harris called this morning and told me to pick these files up at his house. They are the direct exams for his witnesses.”

Elsie nodded and flipped through them quickly.

In a harsh whisper, Elsie said, “What’s going on? He had five witnesses to call; there are only four files here.”

Stacie blew her breath out with a sympathetic face.

“Yeah, I know. He said he didn’t get around to the last one, because he wasn’t feeling good.”

“Motherfucker,” Elsie began, before she caught herself; the jurors were filing back in.

She composed herself and stood as the thirteen men and women filed by: a jury of twelve, plus an alternate, just in case. Elsie always rose for the jury; she did it to demonstrate respect, but also to put herself at eye level with them. Since no communication was permitted between the attorneys and the jurors, she needed to connect with them through eye contact. As they passed by, she tried to smile at each one in turn; most of them looked away. She wasn’t worried. They weren’t ready yet. By Closing Argument, she would be eye fucking half of the women and all of the men.

When the judge called her to present her Opening Statement, Elsie made a surreptitious swipe with a wad of Kleenex to collect the sweat beading on her face. Rising and pulling her shoulders back to appear confident, she approached the jury box. “Ladies and gentlemen of the jury,” she began.

“Again: I’m Elsie Arnold, assistant McCown County prosecutor. And the defendant in this case . . .” And Elsie paused, to point an accusing finger at Tanner, as she would in any criminal case. She couldn’t let the jury think that she was reluctant to point a finger of guilt at Monroe because he was so young. “ . . . is Tanner Monroe, charged with murder in the first degree. This”—­to vary the tone, she lowered her voice—­“is what the evidence will show.”

She ran through a summary of the witnesses and testimony they would provide, stressing the presence of Tanner Monroe’s fingerprint on the murder weapon and the DNA match with the victim’s vaginal swab. She knew juries liked scientific evidence, even expected it, due to their exposure to television. While Perry Mason had conditioned her parents’ generation to expect an in-­court confession in every trial, the Law & Order series taught modern jurors to anticipate sophisticated forensic evidence. Elsie was glad that, in this case, she could offer the hard evidence they wanted to see.

When it was Yocum’s turn to proceed, he rose from his chair with an effort, sighing and shaking his head as he approached the jury box. He had no note cards in his hand, and bypassed the nearby lectern, choosing instead to lean on the wooden bar of the jury box with both hands.

“What a sorry state we have come to, ladies and gentlemen, a sorry state indeed—­when the prosecuting attorney in McCown County wants to dispose of a murder case by pinning it on a mere boy. They want to blind themselves to the facts, and lock up an adolescent boy, still wet behind the ears.”

Elsie jumped up. “Objection—­your Honor, this isn’t proper ground for Opening Statement; it sounds like Billy is giving his Closing Argument.”

Yocum glared at her. “Miss Arnold, could you give me a chance to get started here, before you rudely interrupt with your objections?”

The judge nodded. “Let him have a chance to speak, Ms. Arnold.”

Yocum continued, in an indignant tone: “Your Honor, I did not interrupt her once, not one single time when she was speaking to the jury. I have not completed my first blessed sentence, and she is already disrupting my address to these fine citizens. I ask that the prosecution be censured.”

Oh Lord, so this is how it’s going to go, Elsie thought, as she said, “Billy, I gave you no cause to object to my Opening Statement; I didn’t say anything objectionable.”

“She has interrupted me again, your honor,” Yocum said in an aggrieved voice.

“Ms. Arnold, sit down. Mr. Yocum, continue.”

Elsie sat, swallowing back a retort. I hate them both, she thought, smiling beatifically.

Yocum leaned in so close to the jurors that Elsie wondered whether they could smell his breath. He said, “Wait till you see the evidence, ladies and gentlemen. This crime was not perpetrated by a child. This is the act of a man, a grown man, a strong man who could overpower a woman and cut her throat.”

Elsie had to hide her surprise. He was using the ODDI argument. What happened to the insanity defense?

As if Yocum could read her thoughts, he continued: “But this young man, this boy sitting in the courtroom today, could not be considered competent to commit any crime. Sad to say, ladies and gentlemen, a tragic thing, in fact—­my client has a mental disease which prevents him from understanding the nature and quality of his actions or conforming them to law. The evidence will show that my client, this young boy, is, sadly, not sane.”

“Bullshit,” Tanner snapped.

A juror gasped. Elsie blinked, spinning to look at Monroe; then she swung her gaze back to the jury box, trying to assess the impact. A man on the back row—­the juror in the striped tie—­ frowned, and let her catch his eye.

Yocum paused for only a beat; he continued with his opening, raising the volume of his voice. “He is not responsible, you see, because a person who has a mental disease or defect will not be held accountable for his crimes.”

Elsie rose again, saying, “Judge, this is argument,” but no one heard her, because Monroe stood at the same time.

Pointing at Yocum, Tanner Monroe called out, “You’re fired, old man.”

Yocum reeled away from the jury box, regarding the boy with a look of disbelief. “Sit down, Mr. Monroe,” he barked.

Monroe snorted. “You sit down,” he said. “I’m taking over, I’ll do it myself. I told you, I don’t want you to use that insanity shit; I ain’t going to the nuthouse with the crazies. I’ll do this myself, better than you.” To the jury, he said, “I’m not fucking crazy, by the way. You can forget all about that.”

The judge pounded his gavel.

Yocum stepped away from the jury box. “Judge, may we approach?”

“You may.”

Elsie hustled up to meet Billy at the bench. Glancing at Tanner Monroe, she saw him step around the defense table, preparing to join the bench conference.

Judge Callaway pointed his gavel at the juvenile. “Stay right where you are, Mr. Monroe.”

“I want to hear what’s going on.”

“Did you hear me? Sit down.”

Tanner sat, dropping into his chair with a rebellious face. “I’m entitled. I should know waddup.”

At the bench, the judge hissed at Yocum, “Billy, get your client under control.”

Apparently the juvenile had sharp ears. “I’m not his client. He’s fired. He won’t listen to me, won’t do what I tell him.”

Billy bowed his head and gave it a shake. “Never dealt with a client quite like this one, not in my long career. We need to clear the courtroom, Judge, so we can do this out of the jury’s hearing.”

Emil Elmquist was rising from the bailiff’s desk to stand by the defense table. Elsie saw him place a hand on the Taser he kept on his belt. We’re getting ready for a smackdown, she thought.

The judge spoke again, this time in the barest whisper. “He’s contaminating his own case. If you don’t settle him down, Billy, I’ll have to declare a mistrial.”

“A person can represent himself in court if he wants,” Monroe called from the defense table. The bailiff laid a hand on his shoulder, a silent warning.

Elsie whispered to Yocum, “Where did he pick up his legal acumen? Billy, have you been training him for an internship in your office?” Elsie knew the flippant comment was out of order, but she couldn’t help herself. The fact that the trouble was in Yocum’s lap, rather than her own, made her feel giddy.

“Don’t treat this as a joke, young lady. You are out of line,” Billy snapped. His face had turned purple. Elsie hoped he’d remembered his blood pressure meds that morning.

“I’m going to need to have a talk with him, I reckon,” Judge Callaway said, clearly not relishing the prospect, “To disabuse him of the notion that he’ll be representing himself pro se on a murder charge.”

“It’s been done,” Elsie offered. “State v. Zink. We studied it in law school.”

“You’re not helping,” Billy Yocum said.

“Zink fired the public defender at trial and represented himself. The jury found him guilty. He appealed on a Sixth Amendment ‘right to counsel’ argument. But the Missouri Supreme Court upheld his conviction,” Elsie continued.

“Ms. Arnold, I am familiar with Missouri law, thank you,” Judge Callaway said. “And you may recall that Zink was not fifteen years old.”

A buzz from the courtroom increased in volume. The spectators and the jury were growing restless. Jurors were whispering among themselves, leaning forward in their seats to observe the activity. In the gallery, the spectators were conversing openly. A reporter from a Joplin TV station had her phone out and was texting madly. Elsie could imagine the message: “Get the camera crew over here.”

A crack of the judge’s gavel made her jump. “Ladies and gentlemen, we are in recess. Emil, escort the jury to the jury room.” The judge pointed a finger at the television reporter in the front row of the gallery. “Ma’am, if I see that phone again, you’ll be removed from court.”

The reporter dropped it in her bag, with the guilty face of a kid busted for texting in class.

Emil strode to the jury box and shepherded the jurors through the courtroom. As they passed the defense table, the juvenile rose, holding out his hands so they could see his tattooed fingers.

“It wasn’t my fault. I didn’t do it, the other guy cut her throat. I just held her down.”

The judge slammed the gavel, repeatedly beating it on the bench; but the boy raised his voice. It carried over the pounding of the gavel.

“I had to. He said he’d kill me if I didn’t. He’d have done it, too, I’m not shitting you. The dude was a maniac.”

The jurors stood in a single file line before the defense table, gaping, some peering at Monroe’s hands, others turning to the judge for direction. Judge Callaway rose, his robe billowing like a dark angel on a Judgment Day. “Emil!”

“He held her down,” Elsie whispered. Her eyes sought out Billy’s face; it registered frustration and anger, but not surprise. “Duress,” she said.

Yocum shook his head, but with resignation rather than denial. Because Billy certainly knew, as Elsie did: a person who assisted in a crime because of the wrongful threat of another might use duress as a defense to some criminal charges. But not murder.

Duress was never a defense to murder.


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